The Misuse and Abuse of the Tunney Act in the Microsoft Cases: The Adverse Consequences of the "Microsoft Fallacies"

Abstract

This article argues that the courts considering the Microsoft settlement have rewritten both the literal language of the Tunney Act and ignored the legislative intent of Congress when it adopted the Act. In one Microsoft case, the Court of Appeals for the District of Columbia ignored the Congressional intent that courts were to make their own independent evaluation of a consent decree without special deference to the Department of Justice.

In the second Microsoft case, approving a claimed "consent decree" with Microsoft in 2002, the trial court committed clear error when it applied the Tunney Act to a fully litigated case. Congress clearly limited the Tunney Act to cases where no litigation had taken place and the Government's antitrust case was being settled by a proposed consent decree "before any testimony is taken." The second Microsoft case was fully litigated and resulted in findings of a violation of the law by the trial court and the Court of Appeals. Nevertheless, on remand, the trial court found the proposed decree resolving the case was a "consent decree" and applied the Tunney Act to the proceeding.

The article spells out several adverse consequences of both cases, not the least of which is the judicial failure to follow the law as written and the intent of Congress. We believe these matters required the most serious attention of Congress and its committees less the precedents established create a serious problem for future antitrust enforcement, let alone respect for the will of Congress.

The Tunney Act was recently modified to make it even clearer that Congress intended that no deference be granted by the courts when they consider consent decrees before them. The Congressional Record discussing the proposed legislation cites to our article as support.

Bush, Darren and Flynn, John J., The Misuse and Abuse of the Tunney Act in the Microsoft Cases: The Adverse Consequences of the "Microsoft Fallacies". Loyola University Chicago Law Journal, Vol. 34, p. 749, 2003. Available at SSRN: https://ssrn.com/abstract=956587